Health Care Planning

Health Care Planning

Sheri Sudweeks, Esq.Sugai & Sudweeks, LLP

200 S. Santa Cruz Avenue, Suite 100Los Gatos, Ca 95030

408-354-0200Sugaisudweeks.com

Advance Health Care Directive

• Includes individual health care instructions and a power of attorney for health care (PC4605)

• Authority only becomes effective on determination that principal lacks capacity, unless specifically stated otherwise (PC 4682)

AHCD

• Requirements to execute:– Capacity as defined in PC 4609– Execution – must include(PC 4673):

– Must include date executed– Signed by principal or in principals name by another adult in his

presence and at his direction– Witnessed by 2 witnesses under penalty of perjury, one of which

cannot be related to principal or entitled to part of principal’s estate– OR Notarized as alternative to witnesses– ADDITIONAL Requirements if Execution is in a skilled Nursing Facility

– patient advocate or Ombudsmen designated by the Department of aging must sign as one of the witnesses or in addition to notarization

AHCD

• Agents– Authority:

• Health care decisions to the same extent as the principal (PC 4617)• Postmortem decisions such as disposition of remains, making

anatomical gifts requesting an autopsy or releasing medical records (PC 4683(b))

– Limits to authority:• No commitment to mental health facility• No convulsive shock treatment, psychosurgery, sterilization, or

abortion (PC 4652)

– Liability: no liability for health care decisions made in good faith (PC 4741)

AHCD• Revocation – principal may revoke by

– Designation of agent by informing the supervising health care provider verbally or by signed writing (PC 4695 (a))

– Any portion or portions, other than appointment of agent may be revoked at any time, in any manner that communicates an intent to revoke (PC 4695 (b))

– Latter directive revokes former directive (PC 4698)• Third Parties-

– Agent under Directive has priority over conservator for making health care decisions (PC 2356)

– Health Care providers and institutions must comply with instructions from agent as if from patient (PC 4733)

– Limited reasons allow a health care provide to decline to comply (i.e. reasons of conscience)(PC 4734)

– Can petition court to enforce (PC 4766(e))– Health Care provider or institution that intentionally violates directive is subject to

liability and damages that include attorney fees (PC 4742)

Talking to Clients about AHCD

Are your documents current?• Executed Prior to 1997• Executed Prior to July 2000• Executed Prior to 2004• Have you signed a generic hospital form that

revoked your document?• Statutory form?• Kaiser (or other PPO/HMO) form?


Agent• Someone to make decisions for you if you are

unable to do so• Choosing an agent:– at least 18 years old– knows you well– can be there for you when you need them– you trust to do what is best for you– can tell your doctors about the decisions

you would want made


• Your Agent cannot be your doctor or someone who works at your hospital or clinic where you get health care, unless they are a family member or your co-worker.

Talking to Clients About AHCD

Is there someone you do not want to be your agent?

• You can also put this into your AHCD• You can even put limits on who may visit you


What powers do agents have?• Only those that you give • AHCD can give agent immediate power or state that Agent

can only act if you are unable to make decisions

• Your agent can agree to, say “no” to, change, stop or choose:– • doctors, nurses, social workers– • hospitals or clinics– • medical treatment (including artificial feeding), medications or

tests– • what happens to your body and organs after you die


Your Wishes:• Terminal Illness• Life Support• Irreversible Coma• Palliative Care• Nutrition and Hydration• Hospice• Long term care• Organ Donation


Organ Donation• Entire Body• Organs and Tissue• Donate to University, Hospital, Organ Bank• Limitations: Transplant, Education, Research• Let Agent make decision


Autopsy• Religious beliefs• May be overridden by law enforcement• Let Agent make decision


Disposition of Remains• Arrangements that you have in place• Your wishes• Agents discretion

What do I do with my AHCD?• Keep the original yourself. Make copies of the form to

share with those who care for you or are listed as agents.• Make sure that you place a copy with each of your

doctors, nurses, social workers, and hospital.• If you keep an emergency bag by your door or a vial of life

in your refrigerator, either include a copy or the location of a copy.

• Register your AHCD with the Secretary of State.• Have CODA create a wallet card.• CMA Wallet card. Keep a list of who has copies.

DNR

• Do Not Resuscitate• California Form (EMSA)• Signed with Physician• EMS policies• MedicAlert Registration• Conservator may not execute without

additional court order

POLST

• Physicians order for life sustaining treatment• No Conservator right-need court order• Signed by doctor and patient/agent• Sets forth decisions that patient has made

decisions about end of life treatment

Authorization for Medical Treatment of Adult Without Conservator

• Probate code Section 3200-3212• Permits a petition to obtain authority for a

health care decision for non conserved person without capacity

• Petitioner may be spouse, friend, relative, interested person

• Limited to a specific health decision, not an ongoing course of treatment

Law

Health Care Planning